[1] The relationship between the construction-related laws and regulations concerning the width of a road and the scope of the right to passage over surrounding land, and whether the scope of the right to passage over surrounding land should be compared to the future use of the right to passage (negative)

[2] Where a person who has the right to passage over surrounding land establishes a passage pursuant to the main sentence of Article 219(1) of the Civil Act, the content of the obligation to be borne by the owner of the passage and the cost of building and maintaining the passage and the person who bears the damage of the owner of the passage (=the

[3] The case reversing the judgment of the court below on the ground of misapprehension of legal principles as to the effect of the right of passage over surrounding land, which recognized the right of passage over surrounding land and judged that the owner of the right of passage has the obligation of removal

[1] The provisions on the width of a road stipulated in the construction-related Acts and subordinate statutes do not naturally create a right to passage over surrounding land, which is contrary to the width or size of the road stipulated in the construction-related Acts and subordinate statutes, as an anti-private interest to the owner of the land. However, considering the regulatory contents of the statutes as well as the regulatory grounds, the appropriate scope of the right to passage over surrounding land shall be determined by weighing and balancing the degree of the necessity of passage roads for the construction of the building by the owner of the land at issue and the degree of the damage incurred by the owner of the surrounding land. Furthermore, the scope of the right to passage is recognized within

[2] Where a person having the right to passage over the surrounding land opens a passage pursuant to the main sentence of Article 219(1) of the Civil Act, the person having the right to passage over the surrounding land is not obligated to take active action, such as establishing a passage, in principle, but not obligated to take active action. However, where the person having the right to passage over the surrounding land installs a constructed object such as a wall, etc. that obstructs passage over the surrounding land due to the right to passage over the surrounding land, the person having the right to passage over the surrounding land bears the duty to remove the passage for the purpose of indicating the original function of the right to passage over the surrounding land. The person having the right to passage over the surrounding land shall bear the cost of building or maintaining the passage even if the right to passage over the surrounding land is recognized, and the person having the right to passage over the surrounding land

[3] The case reversing the judgment of the court below on the ground of misapprehension of legal principles as to the effect of the right of passage over surrounding land, which recognized the right of passage over surrounding land and judged that the owner of the right of passage is obligated to remove drainage installed

[1] Article 219 of the Civil Act, Article 21(1) of the Housing Act, Article 25 of the Regulations on Standards, etc. for Housing Construction / [2] Article 219 of the Civil Act / [3] Article 219 of the Civil Act, Article 423 of the Civil Procedure Act

[1] Supreme Court Decision 91Da32251 delivered on April 24, 1992 (Gong1992, 1676), Supreme Court Decision 93Nu20498 delivered on February 25, 1994 (Gong1994Sang, 1132), Supreme Court Decision 96Da3343, 3340 (Gong1997Sang, 166), Supreme Court Decision 90Da5238 delivered on November 13, 1990) / [2] Supreme Court Decision 2005Da7014 delivered on June 22, 2006 (Gong191, 206Ha206Ha, 1249)

Long-U.S. District Housing Association (Attorney Ahn Jae-in, Counsel for defendant)

Korea Housing Guarantee Co., Ltd. (Law Firm Shinsung, Attorney Park Yong-seok, Counsel for the plaintiff-appellant)

Busan District Court Decision 2003Na13519 delivered on April 29, 2005

The part of the judgment of the court below concerning the removal of drainage channel is reversed, and that part of the case is remanded to Busan District Court Panel Division. The plaintiff's appeal and the defendant's remaining appeal are dismissed.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below determined that, in light of the following facts: (a) the plaintiff purchased an access road to the land of this case with the knowledge that there was no access road to the land of this case; (b) the approval was revoked on August 8, 1989; and (c) the plaintiff did not properly proceed with the apartment construction project for not less than ten years even though there was an opportunity to secure access roads even thereafter; (d) most of the land of this case is impossible to construct an apartment with a natural green area; and (e) it is also impossible to continue to implement the apartment construction project because the maximum building-to-land ratio and floor area ratio can not be applied to the land of 24 square meters; and (e) currently, the land of this case is not occupied or managed until the completion inspection; (e) while the apartment building of this case is already constructed on the defendant's surrounding land, the plaintiff's right to access the surrounding land of this case should be removed to the extent that the plaintiff can not have access to the surrounding land of this case; and (e.g., the plaintiff's right to use of the adjacent land within six meters.

2. As to the plaintiff's ground of appeal on mistake of facts

In light of the records, the above fact-finding by the court below on the ground that there was no effort to secure the land of this case that the plaintiff acquired the land of this case and the access road thereafter, and it is practically impossible to construct a large scale apartment on the land of this case is just and acceptable, and there is no error of law such as misconception of facts due to violation of the rules of evidence or incomplete deliberation, as alleged in the ground of appeal.

3. The plaintiff's grounds of appeal and the defendant's grounds of appeal concerning the scope of right to passage over surrounding land

With respect to the scope of the right of passage over surrounding land recognized by the court below, the plaintiff argues that the scope is too small, and the defendant argues against the contrary that the scope is too wide, and each of the court below's measures are erroneous in the misapprehension of legal principles as to the scope of the right of passage over surrounding land. Therefore, this part of the plaintiff and the defendant

The provisions on the width of a road stipulated in construction-related Acts and subordinate statutes do not naturally create a right of passage over surrounding land, in conformity with the width or size of the road as stipulated in the construction-related Acts and subordinate statutes, and the regulatory content of such Acts and subordinate statutes shall also be considered as the grounds for its consideration, and the appropriate scope of the right of passage over surrounding land shall be determined by weighing and balancing the necessity of passage roads for the construction of a building by the owner of the land at issue and the degree of damages suffered by the owner of the surrounding land (see Supreme Court Decisions 91Da32251, Apr. 24, 1992; 93Nu20498, Feb. 25, 1994, etc.). Furthermore, the scope is recognized within the scope of the use of the land at issue under the current method of use of the land at issue, and it is not determined as a passage prior to the use status of the land at issue (see Supreme Court Decision 96Da33434340, Nov. 29, 1996).

If the facts in this case are as acknowledged by the court below, it seems that there is no objective reasonableness in the construction of an apartment as alleged by the plaintiff, but the necessity of the passage road of 6 meters in width for the plaintiff's construction of an apartment complex is not so big. On the other hand, it is apparent that securing a passage road of 6 meters in width as the retaining wall of an apartment complex that has already undergone a completion inspection would compel the defendant, who is the owner of the surrounding land, to suffer excessive damage because it is clear that the court below acknowledged the right of passage over surrounding land owned by the defendant for the land in this case, and it cannot be said that the court below erred by misapprehending the legal principles as to the scope of the right of passage over surrounding land, which are set up only outside the retaining wall installed in the surrounding land owned by the plaintiff, without setting the scope of the scope of the

On the other hand, the scope of the right of passage recognized by the court below to the plaintiff is outside of the boundary of retaining walls and wire network from the apartment complex constructed on the ground among the surrounding land owned by the defendant, and it is not possible for the residents of apartment constructed on the ground or the employees of the defendant to pass or use the drainage system installed for the drainage from the land of this case owned by the defendant, which is more known than the above land, except for the matters related to the drainage way installed on the above land. Thus, when balancing the plaintiff's necessity of passage and the degree of the defendant's damage in accordance with the legal principles as to the scope of the right of passage over surrounding land as seen earlier, it cannot be said that the court below erred by misapprehending the legal principles as to the scope of the

Therefore, we cannot accept all the grounds of appeal by the plaintiff and the defendant that the court below erred in the misapprehension of legal principles as to the scope of the right to passage over surrounding land.

4. As to the Defendant’s ground of appeal on the misapprehension of the legal principle as to the removal of drainage channels or incomplete hearing

The court below held that the plaintiff has the right to passage over surrounding land as to the land within the scope of its holding, and ordered the defendant to remove the drainage way installed within the land in order to guarantee the passage over the part of the land, but this is very doubtful.

In addition, in cases where a person having the right of passage over surrounding land opens a passage pursuant to the main sentence of Article 219(1) of the Civil Act, the person having the right of passage shall, in principle, bear the passive duty of allowing passage by the person having the right of passage, not the duty of establishing a passage. However, in cases where the person having the right of passage installs a constructed object, such as a wall, etc. which obstructs passage based on the right of passage over surrounding land, the person having the right of passage bears the duty of removal for the purpose of indicating the original function of the right of passage over surrounding land (see, e.g., Supreme Court Decisions 90Da5238, May 13, 1990; 2005Da70144, Jun. 2, 2006), if the right of passage over surrounding land is recognized, the cost of building or maintenance of the passage shall be borne by the person having the right of passage over surrounding land, and even in such cases, the owner shall make compensation for the damage to the place and the right of passage.

Therefore, in order to order the removal of the above drainage, it is necessary to first consider whether the drainage route obstructs the passage to the point of ordering the removal, and even if it is recognized that the passage obstructs, if the original function of the drainage route and the disadvantage of the defendant is to be removed, it is reasonable to select such a method if the bridge is installed without removing the drainage route, and if it is possible to overcome the passage obstacle by cutting it, it is reasonable to select such a method. In this case, the cost necessary for the construction of the passage is the nature of the plaintiff to bear the cost of the passage (see Supreme Court Decision 2002Da53469, Aug. 19, 2003). Accordingly, even if it is judged that it is difficult to pass the passage without removing the drainage route, it is very questionable whether the defendant should bear the cost of removing it as a whole (see Supreme Court Decision 2002Da53469, Aug. 19, 203).

Nevertheless, the decision of the court below which acknowledged that the defendant had the obligation to remove the drainage drainage without going through such deliberation without any reasons is erroneous in the misapprehension of legal principles as to the validity of the right to passage over surrounding land, the lack of reasons or incomplete deliberation, which affected the conclusion of the judgment. The defendant's ground of appeal pointing this out has merit.

5. Conclusion

Therefore, the part of the judgment of the court below concerning the removal of drainage shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The plaintiff's appeal and the defendant's remaining appeals are all dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)